Messier v. Bouchard Transportation
756 F. Supp. 2d 475
S.D.N.Y.2010Background
- Messier, a seaman, pursued maintenance and cure under general maritime law after an October 2005 back injury and subsequent December 2005 diagnosis of B-cell lymphoma.
- He slipped disembarking the Evening Mist at a Staten Island drydock on October 23, 2005, after which back pain arose; creatinine spiked in late October 2005 leading to renal hospitalization in early November 2005.
- Lymphoma was diagnosed in December 2005 and he underwent chemotherapy/radiation, leading to work absence through October 2006.
- Plaintiff initially asserted Jones Act negligence but later dropped that claim; the case proceeded as an admiralty maintenance and cure dispute against Bouchard Transportation Co., Inc.
- Messier argues either that his lymphoma manifested during ship service (and thus merits maintenance and cure) or, alternatively, that it can be recovered under a doctrine allowing a second condition to be cured while maintenance and cure for a prior condition is ongoing; however, he did not show symptoms during the last hitch.
- The court transferred the case to this district and the parties cross-moved for summary judgment on the maintenance-and-cure issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 'manifest' require in-service symptoms? | Messier's lymphoma manifested in service by existence of disease during the last hitch, even if asymptomatic. | Manifestation requires symptoms during service; asymptomatic disease does not qualify. | Manifestation requires symptoms during service; Messier did not manifest while in service. |
| Can an asymptomatic disease diagnosed after service still trigger maintenance and cure under Petition-like reasoning? | Petition permits maintenance and cure despite lack of in-service symptoms if the disease existed during service. | Petition is not controlling here; asymptomatic disease not shown to manifest during service is not recoverable. | Petition-like reasoning not adopted; asymptomatic disease not shown to manifest during service does not entitle Messier to maintenance and cure. |
| Is Messier entitled to maintenance and cure for the lymphoma under the 'second-illness during cure' doctrine (Gauthier/Brassea)? | Second illness arising during ongoing maintenance and cure for a prior condition may be recoverable. | No maintenance and cure for a second illness since Messier was not receiving maintenance and cure for his back injury when lymphoma appeared. | Gauthier/Brassea doctrine not affording relief here because Messier was not in cure for a prior condition at the time lymphoma appeared. |
Key Cases Cited
- Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir.2004) (manifestation requires competent proof of causal connection when symptoms appear post-employment)
- Calmar S.S. Corp. v. Taylor, 303 U.S. 525 (U.S. 1938) (maintenance and cure for diseases not caused by service must manifest during employment)
- Vaughan v. Atkinson, 369 U.S. 527 (U.S. 1962) (seamen's maintenance and cure referenced; discussion of manifest and related issues)
- Stevens v. McGinnis, Inc., 82 F.3d 1353 (6th Cir.1996) (symptoms during employment can establish manifestation; ambiguity discussed)
- Shaw v. Ohio River Co., 526 F.2d 193 (3d Cir.1975) (in-service status and manifestation considerations; shore leave context)
- George v. Chesapeake & Ohio Ry., Co., 348 F. Supp. 283 (E.D.Va.1972) (unspecified timing of cancer onset but symptoms during long tenure supported maintenance and cure)
- Petition of the United States, 303 F. Supp. 1282 (E.D.N.C.1969) (noted exception permitting maintenance and cure despite lack of manifest symptoms in some contexts)
- Gauthier v. Crosby Marine Service, Inc., 499 F. Supp. 295 (E.D.La.1980) (second-illness during cure doctrine; damage awards for multiple conditions)
- Brassea v. Person, 985 P.2d 481 (Alaska 1999) (second-illness during cure principle applied)